November 29, 2006

That’s silly. Congress clearly has the power to pass laws, under Section 5 of the 14th Amendment, to prevent states depriving citizens of life, liberty or property without due process of law. When cops bust down your door and shoot you without — very — good reason for being there, that’s a deprivation of liberty and property, and often life, without due process, the very kind of thing Congress was empowered to address. So unless Patterico thinks that the 14th Amendment is itself an improper impediment to federalism, I don’t see the problem here. What’s more, the no-knock problem stems from federal policies — the “war on drugs” and the free distribution of military equipment to local SWAT teams — and thus further justifies a federal corrective. Under federalism, one role of the federal government is to protect citizens’ rights against unconstitutional encroachment by the states. That’s what the 14th Amendment is about. And the doctrines of official immunity that make lawsuits difficult in such cases are found nowhere in the Constitution, but are the creation of activist judges, reading their policy preferences into the law. They are worthy of no particular deference.

UPDATE: I see that Patterico has updated to say that he doesn’t think the immunity-stripping violates federalism, which makes me wonder what our disagreement really is. At any rate, Ilya Somin has some further thoughts on how this problem was mostly federal in creation anyway.

ANOTHER UPDATE: In a later update, Patterico says that I’m inconsistent on federalism in light of my Schiavo comments here:

After talking about small government and the rule of law, Republicans overwhelmingly supported a piece of legislation intended to influence a single case, that of Terri Schiavo. As former Solicitor General Charles Fried observes:

” In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades.”

I think he’s right. As with Bill Hobbs, quoted below, I don’t have an opinion on what should happen to Terry Schiavo — though given the rather large numbers of judges who have looked at this case over the years I’d be especially reluctant to interfere. Can they all be deranged advocates of a “culture of death?” But regardless of the merits, Congress’s involvement in this case seems quite “unconservative” to me, at least if one believes in rules of general application. Florida has a general law, and it’s been followed. That people don’t like the result isn’t a reason for unprecedented Congressional action, unless results are all that matter.

Reading that entire post, it seems to me that my predictions of Republican problems ahead have certainly been borne out in spades, but it wasn’t really a federalism argument as such. (In fact, in an earlier post — scroll down from that link above — I noted that the bill wasn’t necessarily unconstitutional, just a bad idea.) Nonetheless, I think that the kind of legislation I’ve suggested — stripping officers of official immunity in no-knock cases, where we’ve seen that there’s a pattern of misconduct and that state remedies have proven inadequate — is at the very core of Congress’s 14th Amendment powers. On the other hand, the Schiavo intervention seems much farther from that mold.

At any rate, doesn’t this go both ways? That is, isn’t Patterico inconsistent to have supported the Schiavo legislation while regarding Congressional legislation over no-knock raids as posing troubling federalism problems?

It seems however, that the actual remedy that I’ve proposed raises no problems in his mind, so this entire disagreement is fairly abstract. I have great respect for his abilities as a blogger, but I remain convinced that no-knock raids should be limited to very narrow circumstances, and that officers — and government agencies, for that matter — who engage in them should not be able to hide behind doctrines of official immunity that themselves have little warrant in the Constitution.

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